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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.V. PINTO, J.
Manoj Vinodchandra Shah – Appellant
Versus
Saumik Dilipbhai Mehta – Respondent
Appeal From Order No. 173 of 2022, Civil Application (For Stay) No. 1 of 2022
Decided On : 11-07-2023
Civil Procedure Code, 1908 – Order 39 – Specific Relief Act, 1963 – Section 15 – Grant of injunction – Deed of assignment and agreement – Contract of sale – Held, It is clarified that this Court has examined impugned order passed by learned trial Judge within limited scope of Order 43, Rule 1(r) of Code of Civil Procedure whereas main controversy involved in suit is at large before trial Court to be adjudicated through full fledged trial – Therefore, learned trial Judge shall not be influenced by any observations recorded by this Court herein above while deciding suit at end of trial – Findings recorded by this Court are tentative in nature and learned trial Judge shall decide case on merits as per evidence led by parties during course of trial and decide suit in accordance with law – Civil Application disposed of.
JUDGMENT :
S.V. PINTO, J.
1. This appeal has been filed at the instance of the appellant herein original plaintiff against the order passed by the learned 2nd Additional Senior Civil Judge, Kalol, whereby the learned Judge was pleased to dismiss the application Exh.5 filed by the appellant herein original plaintiff.
2. The facts leading to the filing of this appeal may be summarized as follows:
2.2 It is also the case of the plaintiff that the respondent no. 2 society, being the original owner of the subject lands, has executed one agreement to sell dated 29.04.2021 in favour of the respondent nos.1 and 3 and the said agreement to sell clearly mentions that the respondent nos.1 and 3 includes their heirs, successors, assignees etc. as mentioned in the said agreement to sell. That as per the said agreement to sell, the total area agreed to be sold was 4,00,000 square yards for total consideration fixed at Rs.2,32,04,00,000/- and out of which, the said respondent no. 1 and 3 have made payments of Rs.1,00,000/- vide cheque no. 000122 dated 28.04.2021, Rs.11,00,00,000/- vide cheque no. 000123 dated 28.04.2021 and Rs.10,00,000/- in cash to the respondent/defendant no. 2 society. That the said agreement to sell is signed by all the parties and is duly notarised.
2.3 It is also the case of the plaintiff that the said notarized deed dated 29.04.2021 entails the characteristic of agreement to sale which was executed qua the subject lands by the respondent-defendant no. 2 in the favour of the respondent nos.1 and 3 and as per the said agreement it was the responsibility of the respondent/defendant no. 2 to get the title clear of the lands in question and to execute the sale deed in the favour of the respondent/defendant nos. 1 and 3. That as per the terms of the said agreement to sell dated 29.04.2021, neither of the parties (proposed purchasers) were barred from transferring and/or assigning their right over the subject lands on the basis of the said agreement to sell in favour of a third party.
2.4 It is also the case of the plaintiff that thereafter, on the basis of the said agreement to sell and as the rights of the respondent nos. 1 and 3 derived under the agreement to sell, the said respondent no. 1 executed a deed of assignment dated 17.05.2021 in the favour of the present appellant qua 50% share/interest in the lands in question. That the deed of assignment dated 17.05.2021 was executed by the respondent/defendant no. 1 in favour of present appellant-plaintiff, who was one of the parties to the agreement to sell dated 29.04.2021 and by this deed the respondent no. 1 agreed to assign his rights acquired pursuant to and on the basis of the agreement to sell dated 29.04.2021. That as per the said agreement to sell dated 29.04.2021, the respondent no. 1 was having 50% share in the subject lands and said share was agreed to be assigned in the favour of the present appellant-plaintiff. That by way of the said assignment deed, the respondent no. 1 agreed to sell the suit land in favour of the appellant, which was purchased through the agreement to sell dated 29.04.2021 and in view of the said assignment deed, the respondent no. 1 assigned his ownership rights in the favour of the present appellant. That the said agreement was executed in time and valid on the date of execution of said assignment deed in the favour of the appellant and thereby, the respondent no. 1 agreed to assign rights in the suit land to the extent of his share of 50% i.e. 200000 square yards out of total area admeasuring 400000 square yards for a cons
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